Citation Nr: 1318171 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 10-18 485 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1951 to June 1952. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO). In September 2012, a hearing was held before the undersigned; a transcript of the hearing is associated with the claims file. In November 2012 the Board remanded this matter for additional development. The Board notes that in Clemons v. Shinseki, 23 Vet. App. 1, 8 (2009), the U.S. Court of Appeals for Veterans Claims (Court) held that the scope of a mental health disability claim includes any mental health disability that could reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. However, that decision also held that where, as here, there is a final agency decision denying a claim based on a particular diagnosis (an unappealed March 1953 rating decision denied service connection for inadequate personality, and an unappealed August 1958 rating decision denied service connection for mixed psychoneurotic reaction with anxiety predominating), and subsequently a new and different psychiatric disability is submitted for VA's consideration (PTSD), the new claim is distinct from those previously adjudicated by final decisions (requiring reopening). Accordingly, the matter now before the Board is limited to the diagnosis of PTSD. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran is not shown to have engaged in combat; there is no credible supporting evidence that the claimed in-service sexual assault occurred; he does not have a diagnosis of PTSD. CONCLUSION OF LAW Service connection for PTSD is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claim prior to its initial adjudication. An October 2009 letter explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. The October 2009 letter also informed the Veteran of disability rating and effective date criteria. He has had ample opportunity to respond/supplement the record, and has not alleged that notice in this case was less than adequate. The Veteran's service treatment records (STRs) and service personnel records are associated with his claims file, and pertinent postservice treatment records have been secured. Virtual VA [VA's electronic data storage system] was reviewed, and contains pertinent documents, some of which are duplicates of those contained in the paper claims file. VA has made adequate efforts to corroborate the Veteran's alleged stressor events in service. Specifically, he alleges that in May 1952 he was sexually assaulted by a Marine he became acquainted with while a patient at a U.S. Navy Hospital. The assault allegedly occurred on a trip from the hospital into "town". Corroboration of the alleged assault has been hampered by the Veteran's inability to provide identifying information, such as the alleged assailant's name (and that he reportedly did not tell anyone about it because he was threatened by the perpetrator). In April 2013 the RO made a formal finding that that the Veteran's alleged stressor event cannot be corroborated due the lack of identifying information. The RO did not arrange for a VA examination/opinion with respect to this claim. The November 2012 Board remand specified that an examination should be conducted only if a stressor event in service was deemed corroborated. As there is no corroborating evidence of the alleged stressor event in-service and no diagnosis of PTSD, an examination to secure a medical nexus opinion is not necessary, as even the low standard as to when a nexus examination is necessary endorsed by the Court in McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) is not met. See 38 C.F.R. § 3.159(c)(4). At the September 2012 Board hearing before the undersigned, the Veteran was advised of what was needed to substantiate a claim for PTSD; his testimony reflects that he is aware of what remains necessary. He has not identified any pertinent evidence that remains outstanding, and a letter from his representative received in May 2013 advised that no additional evidence or argument would be submitted. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a claimed disability, there must be evidence of a present disability; evidence of an in-service incurrence or aggravation of a disease or injury; and evidence of a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a nexus between current symptomatology and the claimed stressor in-service. 38 C.F.R. § 3.304(f). Where the Veteran did not engage in combat with the enemy, or the claimed stressors are not related to combat, the Veteran's testimony alone is insufficient to establish the occurrence of the claimed stressors; the testimony must be corroborated by credible supporting evidence. Cohen v. Brown, 10 Vet. App. 128 (1997). Service department records must support, and not contradict, the claimant's testimony regarding noncombat stressors. Doran v. Brown, 6 Vet. App. 283 (1994). Here, as it is not shown or alleged that the Veteran engaged in combat with the enemy, his lay statements, alone, are insufficient to establish the occurrence of his alleged stressor; rather, corroborating evidence is necessary. See 38 C.F.R. § 3.304(f); Cohen, 10 Vet. App. at 147. A July 2010 amendment to 38 C.F.R. § 3.304 that eliminated the requirement of corroborating evidence of alleged stressors in certain circumstances is not relevant in this case, as it is not claimed or suggested by the evidence that the Veteran's stressors are related to a fear of hostile military or terrorist activity. See 38 C.F.R. § 3.304 (f)(3). This case falls within the category of situations, to include allegations of personal/sexual assault, where it is not unusual for there to be an absence of service records documenting alleged events. 38 C.F.R. § 3.304(f)(5) recognizes that service records may not contain evidence of personal/sexual assault, and that alternative sources may provide credible corroborating evidence of an in-service personal assault stressor. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board notes that all of the evidence in the Veteran's claims file and in Virtual VA with an emphasis on the evidence relevant to this appeal, has been reviewed. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran claims that he suffers from PTSD which resulted from a sexual assault in service. Specifically, he asserts that in May 1952 he was admitted to a U.S. Navy Hospital for psychiatric inpatient treatment after being placed on "report" for peeping in a porthole at a female nurse while aboard the USS Repose (Ah-16). While at the hospital he befriended a patient, a marine, who on "liberty" on several occasions had given him a ride from the hospital to Los Angeles (town) and back to the hospital. On one such occasion to town, he was taken to an apartment and sexually assaulted by the marine. The marine threatened to kill him if he told anyone. He stated that he was afraid and did not tell anyone. He now reports that he has had constant emotional pain, headaches, nightmares, abdominal pains, and a great distrust of people, as a result of that incident. The Veteran's alleged stressor is of a non-combat nature; as such, there must be credible supporting evidence to corroborate his alleged stressor event in service (on which a diagnosis of PTSD may be based). The RO attempted to verify the Veteran's alleged stressor. An April 2013 VA formal finding memorandum noted the following: (1) on December 12, 2012, the Veteran submitted a statement regarding his alleged sexual assault in service; the statement did not include sufficient details for an attempt at corroboration; (2) on January 3, 2013, the AMC received a copy of a January 18, 2010 statement sent by the Veteran's counselor, to the Texas Veterans Commission. It provided more description of the alleged sexual assault, but the information remained insufficient to allow for corroboration (3) on January 31, 2013, the Veteran was sent a VA Form 21-0781a, asking for specific details of the alleged personal trauma incident that resulted in PTSD; he did not respond; (4) a March 2005 VA Medical Center (VAMC) outpatient psychology service consult report notes the Veteran admitted that he had trouble adjusting to military. His initial duties were on a hospital ship as a steward. One night he was found peeping at a nurse and another man having sex and he was taken off the ship and transferred to a psychiatric hospital. He stated that he was hospitalized about three months, but was able to get around as he pleased. He described the sexual assault incident. He stated that soon after the incident he was given the opportunity for an honorable discharge for the "convenience of the government[;]" (5) a June 1952 Report of Board of Medical Survey reflects that when the Veteran was admitted to the U.S. Navy Hospital in May 1952, it was admitted with a diagnosis of inadequate personality. This diagnosis was assigned because during his service aboard ship he failed to get along with others, would not accept responsibility and was totally unreliable in any task assigned to him. It was the opinion of the Board of Medical Survey that the diagnosis of inadequate personality was correct, that it did exist prior to enlistment, was not the result of his own misconduct and was not aggravated by service conditions. There was no mention of an allegation of a sexual assault while at a Navy Hospital in the report. It was also noted that available records do not show a performance decline or personality change while the Veteran was serving in the U.S. Navy, but that servicer personnel records show a consistent record of poor performance and misbehavior throughout. There was no evidence to suggest that the Veteran's discharge from service was related to a sexual assault during hospitalization at a Navy Hospital. Based on such findings, AMC determined that the Veteran's alleged stressor could not be corroborated as there was a lack of credible supporting evidence. The Veteran's STRs and service personnel records are silent for any report/indication that he suffered a sexual assault in service. On service separation examination, it was noted that under neuropsychiatric observation the Veteran had disclosed no psychotic trends. Inadequate personality was diagnosed. Notably, he asked that his Navy medical record be corrected; in April 2009 his Navy medical record was corrected by striking through the diagnosis of inadequate personality. Postservice medical evidence shows that the Veteran has not received a diagnosis of PTSD. An August 2002 VAMC mental health note reveals that he was referred to a mental health clinic by a primary care physician following his endorsement of military sexual trauma items on health screening. He reported that when the alleged sexual trauma occurred, he was hospitalized for psychiatric evaluation at a Navy Hospital for voyeurism (spying on a nurse who was disrobing)). He reported that he often spent day passes going places with a Marine, and that on one of those occasions the Marine "made a sexual advance" to him that he refused; the Marine reportedly threatened to kill him if he ever told anyone. The Veteran reported fear and shock from the incident at the time and ongoing fear until the Marine left the unit a few days/weeks later. He reported that he was given an option to leave military service five months early following his psychiatric hospitalization, which he accepted instead of reassignment to a different ship. He received a medical discharge under honorable conditions. The diagnosis was anxiety disorder NOS [not otherwise specified] (rule out PTSD). It was noted that it was uncertain whether the Veteran's symptoms met the full criteria for PTSD (it was unclear whether his stated trauma met Criterion A for a PTSD diagnosis, but that he has significant symptoms related to such incident). On November 2004 VA PTSD screening the Veteran responded "No" when asked if he ever had any experience that was so frightening, horrible or upsetting that, in the past month he had nightmares about it or thought about it when he did not want to, tried hard not to think about it, went out of his way to avoid situations that reminded him of it, was constantly on guard, watchful, or easily startled, felt numb or detached from others, activities, or his surroundings, The PTSD screening was negative. The Veteran filed his claim of service connection for PTSD (due to sexual trauma) in September 2009. 2007 to 2012VA treatment records (in the claims file and in Virtual VA) show ongoing psychiatric/treatment, but not a diagnosis of PTSD. At the September 2012 hearing, the Veteran testified that he had mentioned [the alleged sexual assault] to some close friends; who are now deceased "when it happened", and also mentioned such incident to an aunt, who also is deceased. He acknowledged the need for corroborating evidence of the alleged stressor. He stated I have to go to work and see if I can get the statements." None have been received. The Board has considered the Veteran's recent testimony that he told friends and an aunt who are now deceased about the sexual assault incident in service. This testimony is obviously self-serving (as the Veteran reports, incapable of corroboration) and compensation driven. See Pond v. West, 12 Vet. App. 341, 345 (1999) (although Board must take into consideration the appellant's statements, it may consider whether self-interest may be a factor in making such statements). It is also inconsistent with his earlier accounts indicating that he did not share the information with anyone. Consequently, the Board finds it not credible. Furthermore, the lack of consistency in the Veteran's various accounts weighs heavily against their credibility. Official records show the Veteran was hospitalized in service for psychiatric evaluation based on his inability to get along with others and to perform his duties. While he has consistently reported he was hospitalized for voyeurism, his various account have been inconsistent regarding what the voyeurism entailed; once he described it as peeping through a porthole; another time he indicated that he spied on a nurse disrobing; still another time he related that he was observing a nurse engage in a sex act with another person. Regarding the alleged sexual assault itself, he initially reported that he was orally sodomized by the marine he befriended at the Naval Hospital. Later, in August 2002, he reported "the Marine 'made a sexual advance' that he refused" The Board finds the Veteran's accounts of the details of the alleged sexual assault in service to not be credible. The Veteran's alleged stressor event in service is uncorroborated by independent evidence. There are no supporting official records, no supporting lay statements, and no documented behavior/performance changes that would suggest such event took place. By his own account, the Veteran was hospitalized in service for aberrant behavior before the alleged event took place. The Board notes the Veteran's reports that following service he was hospitalized for anxiety and depression in 1958, had marital problems that resulted in his wife leaving him, consumed alcohol excessively, had multiple sexual partners, took "pep pills," and was unable to "hold down" a job, and that these are evidence of a change in behavior after a sexual assault in service. While the record does contain clinical records of psychiatric evaluations in 1958 (more than 5 years after his discharge from service) the records note the Veteran sought psychiatric services because of difficulty getting along with people, being suspicious of people, trouble keeping jobs, resentment for people who supervised him, depression, fear of dying, and difficulty sleeping. Nothing in the reports suggests that the problems stemmed from a sexual assault in service; no medical provider has opined that the Veteran's various postservice problems are evidence of a sexual assault therein. Furthermore, the Veteran has not been assigned a diagnosis of PTSD. The Board notes that an August 2002 VA outpatient clinical record reports a diagnosis of "rule out" PTSD. The term "rule out", as used in medicine, means to eliminate or exclude something from consideration to clarify those diagnoses for which the evidence is not sufficient to warrant a definitive diagnosis, or to eliminate or exclude something from consideration, and is not in and of itself a diagnosis of an underlying disorder. In other words, the psychologist entering that that term did not diagnose PTSD, but instead was indicating that such diagnosis remained to be excluded. The record does not otherwise show a diagnosis of PTSD. In the absence of such diagnosis, there is no valid claim of service connection for PTSD. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In summary, there is no credible supporting evidence corroborating the Veteran's alleged stressor event in service, and the record does not show a diagnosis that the Veteran has PTSD. Consequently, threshold requirements for substantiating a claim of service connection for PTSD are not met. The preponderance of the evidence is against the claim of service connection for PTSD; and the appeal in the matter must be denied. Gilbert, 1 Vet. App. 49, 55. ORDER Service connection for PTSD is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs